ROSENBERG v. MEESE

November 27, 1985

SUSAN ROSENBERG, Plaintiff, against EDWIN MEESE, III, Attorney General of the United States; NORMAN CARLSON, Director of the Bureau of Prisons; STEPHEN GRZGOREK, Regional Director of the Bureau of Prisons; and DOUGLAS LANSING, Warden of the Metropolitan Correctional Center, New York City, Defendants

The opinion of the court was delivered by: LEISURE

LEISURE, District Judge:

This is an action for injunctive relief and damages. Plaintiff Susan Rosenberg ("Rosenberg") is a federal prisoner currently incarcerated at the Metropolitan Correctional Center in New York City ("MCC-NY"). Defendants, who have been sued both in their individual and official capacities, are: Edwin Meese, III, the Attorney General of the United States; Norman Carlson ("Carlson"), the Director of the Bureau of Prisons ("BOP"); Stephen Grzgorek, the Northeast Regional Director of the BOP; and Douglas Lansing, the Warden of MCC-NY.

Plaintiff seeks a preliminary and permanent injunction enjoining defendants, their agents, employees and those acting in concert with them, from designating Rosenberg to any Metropolitan Correctional Center ("MCC"). Plaintiff also seeks a preliminary and permanent injunction enjoining defendants, their agents, employees and those acting in concert with them, from basing any decisions regarding Rosenberg's conditions of confinement, treatment, security classification or designation on unproven allegations of criminal conduct. These claims for injunctive relief are based on the alleged violation of plaintiff's rights under the First, Fifth, Sixth and Eighth Amendments to the United States Constitution. Plaintiff further seeks a declaratory judgment declaring that defendants' actions have violated those constitutional rights. Finally, plaintiff seeks compensatory damages in the amount of $250,000, as well as punitive damages in the amount of $1,000,000. This Court's subject matter jurisdiction in this action, to the extent it exists, is primarily based on 28 U.S.C. § 1331.
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Defendants have moved to dismiss the complaint as moot, and the Court has conducted an evidentiary hearing on plaintiff's motions for injunctive relief. At the present time, the following matters are before me: 1) whether plaintiff's complaint, in whole or in part, has been rendered moot by certain actions of the Bureau of Prisons; 2) whether, as to any claims which have not been rendered moot, a preliminary injunction should be granted; and 3) whether, as to any claims which have not been rendered moot, a permanent injunction should be ordered.

I. FACTS AND PROCEDURAL BACKGROUND

On November 24, 1982, Susan Rosenberg was named as a defendant in a superseding indictment filed in the United States District Court for the Southern District of New York (SSS 82 Cr. 312) (hereinafter referred to as the "Brinks indictment"). That indictment charged Rosenberg and and ten other named defendants with, inter alia, participating in a criminal enterprise (allegedly known to its own members as "The Family") in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et. seq.2 Rosenberg herself was charged with two RICO counts (18 U.S.C. § 1962(c),(d)) and six counts of bank robbery (18 U.S.C. § 2113).
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Although a jury trial on the Brinks indictment took place during 1983,
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several defendants, including Rosenberg, were fugitives from justice and thus were not then tried.

On November 29, 1984, Rosenberg was arrested by the New Jersey police while she and a companion, Timothy Blunk, were attempting to gain access to a storage bin at a public storage facility in Cherry Hill, New Jersey, that Rosenberg had previously rented under an assumed name. Pursuant to a search warrant obtained the night of the arrest, a collection of weapons, explosives and ammunition were discovered in the storage bin, as well as in the car and U-Haul that Rosenberg and Blunk had driven to the facility. See Memorandum of the United States Regarding Sentencing in United States v. Susan Rosenberg, 84 Cr.@ 360 (D. N.J.) ("Presentence Memorandum") at 3-8.
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Although the charges in the Brinks indictment were still pending against Rosenberg, she was first tried on charges based on the November, 1984 incident in New Jersey. She and Timothy Blunk were brought to trial before the Honorable Frederick B. Lacey, United States District Judge of the District of New Jersey. On March 17, 1985, she was convicted by the jury of one count of conspiracy to possess firearms, explosives and false identification (18 U.S.C. § 371); three counts of possession of unregistered firearms (28 U.S.C. §§ 5861(d), 5871); one count of carrying explosives during the commission of a felony (18 U.S.C. § 844(h)(2)); and four counts relating to possession of false identification documents and counterfeit Social Security cards (18 U.S.C. § 1028; 42 U.S.C. § 408). On May 20, 1985, Judge Lacey sentenced Rosenberg to the maximum term of imprisonment on each count, a total of fifty-eight (58) years, the terms to run consecutively.

Following the imposition of sentence, Rosenberg was returned to MCC-NY, the same facility in which she had been incarcerated since December 1, 1984. In August, 1985, Rosenberg was informed by a member of the MCC-NY staff that she had been classified as a security level # 4 prisoner, and that she had been designated for incarceration at the Metropolitan Correctional Center in Chicago, Illinois ("MCC-Chicago"). See Rosenberg Affidavit in Support of Motion for Preliminary Injunction ("Rosenberg Affidavit") at 9. For the time being, however, she was being held in MCC-NY pending trial on the charges contained in the Brinks indictment.

On August 30, 1985, the government requested that an order of nolle prosequi be entered as to the charges pending against Rosenberg that were contained in the Brinks indictment, and this Court (per Duffy, D.J.) granted the government's request.

The government's decision to drop all charges against Rosenberg took her counsel somewhat by surprise, in part because they had anticipated using the time that their client would be on trial for the Brinks charges to consult with her regarding, the appeal of her sentence by the New Jersey District Court. Now faced with Rosenberg's imminent transfer from MCC-NY, her counsel sought to postpone the satisfaction of Rosenberg's writ of detainer, since, if the writ were marked satisfied, there would be no obstacle to prevent her from being transferred to another penal institution in another state. On September 12, 1985, this Court (per Haight, D.J.) agreed to postpone satisfaction of the writ until October 1, 1985. Memorandum and Order, SSS82 Cr. 312 (CSH) (S.D.N.Y. September 12, 1985). In issuing that Order, Judge Haight stated that "[c]ounsel for Ms. Rosenberg informs me, and the Government does not dispute, that the Bureau of Prisons has designated Ms. Rosenberg to serve [the 58-year sentence imposed by the New Jersey District Court] at the Metropolitan Correctional Center, Chicago." Id. at 1.

The good-faith belief of Rosenberg and her counsel, alluded to by Judge Haight, that Rosenberg had been permanently designated to MCC-Chicago, was apparently the impetus for the present proceeding, which is a civil, rather than a criminal, action. On September 26, 1985, Rosenberg's counsel appeared before me with an order to show cause, asking me to grant a temporary restraining order that would enjoin defendants herein, or their agents from transferring her from MCC-NY to any other facility pending determination of her application for a preliminary injunction. In that application, Rosenberg also sought broad injunctive and legal relief, including, inter alia, a preliminary and permanent injunction enjoining the Bureau of Prisons from designating Susan Rosenberg to MCC-Chicago or any other MCC facility.

The essence of plaintiff Rosenberg's argument, as I understood it at the September 26 hearing, was that the BOP, by deciding that Rosenberg should serve the duration of her 58-year sentence in a short-term holding facility with severely limited educational and recreational activities,
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was acting unconstitutionally and was abusing its discretion. In response, however, the government informed this Court that the MCC-Chicago designation was no longer in effect, and suggested that plaintiff's fears of permanent designation to a short-term holding facility were ill-founded.
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Largely on the basis of such assurances, I declined to grant plaintiff's application for a TRO. I did, however, schedule a hearing in approximately two weeks on plaintiff's motions for preliminary and permanent injunctions (which motions, I suggested, and counsel for both sides agreed, would be consolidated by this Court).

When the parties in the present action appeared before me for a second time on October 10, 1985, I was informed of two significant developments. First, Susan Rosenberg had still not been transferred from MCC-NY, because Judge Haight had, in the interim, extended the date for satisfaction of Rosenberg's writ of detainer to October 14, 1985. See Order, SSS82 Cr. 312 (CSH) § (S.D.N.Y. September 26, 1985). Second, Rosenberg had been officially designated to a Metropolitan Correctional Center in Tucson, Arizona ("MCC-Tucson").

At the October 10 hearing, it was the government's position that this redesignation to MCC-Tucson was dispositive of the entire matter before me. The government argued that even if, arguendo, long-term incarceration of a federal prisoner in MCC-NY or MCC-Chicago was impermissible, designation of Rosenberg to MCC-Tucson was "perfectly appropriate." Transcript of October 10, 1985 Hearing at 10. Arguing that there should be "no magic to the [name] Metropolitan Correctional Center," id., the government contended that the conditions at MCC-Tucson were superior to those at other MCCs, particularly in terms of the opportunities for recreation and education. See id. at 9-10.
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Notwithstanding the apparent reasonableness of the government's observations, I was not convinced that the indefinite detention of Rosenberg in a short-term holding facility such as an MCC might not eventually raise questions of constitutional magnitude.
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Because of that concern, and in light of the government's seeming reluctance to designate a woman who had been sentenced to 58 years in prison to any sort of permanent facility, I granted plaintiff's renewed application for a temporary restraining order, thereby enjoining the Bureau of Prisons from transferring Rosenberg from MCC-NY until I had resolved the questions raised by Rosenberg's objections to her indefinite designation to MCC-Tucson.

Once again, intervening events changed the course of these proceedings. On October 25, 1985, the government informed plaintiff's counsel that Rosenberg's designation to MCC-Tucson was only temporary, and that her ultimate designation (upon the completion in early 1986 of facilities currently under construction) would be to the Federal Correctional Institution at Lexington, Kentucky ("FCI-Lexington"). Shortly thereafter, the government moved to dismiss plaintiff's complaint, contending that since the gravamen of the entire complaint was plaintiff's challenge to her (permanent) designation to an MCC facility, the action had been rendered moot by the Bureau of Prison's designation of Rosenberg to the FCI-Lexington.

On November 5, 1985, I conducted an evidentiary hearing on plaintiff's motions for injunctive relief, the main purpose of which was to permit plaintiff to set forth evidence in support of her various claims that defendants had violated her constitutional rights. My findings of fact from that hearing are set forth infra.

II. THE NATURE OF THE RECORD IN THIS CASE

As the preceding section indicates, this litigation has, in a relatively brief period of time, progressed through several stages in various, often unpredictable ways. In the course of these varied proceedings, a substantial evidentiary record has been compiled. That record, which forms the basis for my findings of fact, infra, consists of : 1) numerous affidavits and exhibits submitted with the pleadings and motions of the parties;
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2) the in-court testimony, given November 5, 1985, of Randy Brachman, the Case Management Coordinator of MCC-NY (called as a witness by plaintiff); 3) Bureau of Prisons Directive 5100.2, known as the Security Designation and Custody Classification System Manual ("Manual"), which sets forth the BOP's policy and guidelines for the designation and classification of federal prisoners; and 4) the BOP's "Central File" on Susan Rosenberg, along with all documents in the Bureau's possession relating to Rosenberg's designation or classification as a federal prisoner.

The production in this case of Rosenberg's Central File and other relevant documents held by the BOP was itself the subject of a legal dispute between the parties, initiated when, at an earlier stage in these proceedings, plaintiff attempted, through counsel, to subpoena her Central File. The subpoena was served at MCC-NY, the institution which currently maintains the BOP's files on Rosenberg. MCC-NY refused to honor the subpoena, apparently because of the MCC's apprehension (based on provisions in the Privacy Act) that it could not lawfully release an inmate's file to a third party absent express authorization by the inmate. See 5 U.S.C. § 552a(b); cf. United States v. Charmer Industries, Inc., 711 F.2d 1164, 1175 (2d Cir. 1983) (disclosure of a presentence report to a third person should not be authorized by a district court absent a compelling demonstration that disclosure is required to meet the ends of justice). Subsequently, plaintiff argued to this Court that the Privacy Act's "third-party rule" could not reasonably be invoked to frustrate plaintiff's efforts, through counsel, to gain access to her own file.
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In response, however, the government argued that other provisions of the Privacy Act made it clear that the Bureau of Prisons was not obligated to release plaintiff's Central File. At that point I agreed to resolve the impasse between the parties by conducting an in camera review of Rosenberg's Central File in order to determine which documents contained therein should be released to plaintiff.
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After conducting an initial review of the documents submitted, I concluded that a significant portion of the Rosenberg File consisted of matters of public record, such as published newspaper articles. Accordingly, I asked the government to reconsider its broad refusal to release any documents in plaintiff's Central File. Subsequently, the government chose to release all documents in the Rosenberg File with the following exceptions: 1) the pre-sentence report prepared for Judge Lacey at plaintiff's criminal trial in the District Court of New Jersey; 2) the government's pre-sentence memorandum (and appended exhibits) prepared for that same trial; and 3) the official transcript of the sentencing proceedings at that trial. In addition, two documents -- a clearance and separatee display and a letter to Judge Lacey from Norman Carlson, the Director of the Bureau of Prisons -- were redacted by the government so that references to prisoners other than Ms. Rosenberg did not appear.

On the basis of the government's modified submission, I renewed my in camera review in order to determine whether the government was obligated to release any more documents to plaintiff from her Central File. On the day before I completed that review, it came to light that the pre-sentence memorandum and exhibits that the government was refusing to release to plaintiff had in fact already been made available to her legal advisor at the time of her criminal trial (the documents are also on file with the Clerk of the New Jersey District Court). When this information was brought to the attention of the government, it withdrew its objection to the release of those documents (although the government continued to ask that the pre-sentence report and the transcript of the sentencing proceedings not be released to plaintiff, and to seek the Court's approval of the redactions in two documents).

On November 5, 1985, I formally ruled that the government's refusal to release Rosenberg's pre-sentence report, as well as its decision to redact the names of third parties from two internal documents, were both lawful and proper. I did, however, order the government to release its copy of the sentencing transcript to plaintiff. These rulings were made orally, from the bench; at the time I indicated that I would soon explain in writing the reasons for my decision, particularly with regard to the government's refusal to release plaintiff's presentence report. Accordingly, those reasons are set forth below, as part of the present opinion.
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In considering whether to compel the government to produce plaintiff's presentence report, I was mindful of the decisions of several federal appellate courts that such reports, once released by a federal district court to the agency whose records are being sought, are agency records subject to the disclosure requirements of the Freedom of Information Act ("FOIA"). See Berry v. Department of Justice, 733 F.2d 1343, 1356 (9th Cir. 1984); Lykins v. Department of Justice, 233 U.S. App. D.C. 349, 725 F.2d 1455, 1459-60 (D.C. Cir. 1984); Carson v. Department of Justice, 203 U.S. App. D.C. 426, 631 F.2d 1008, 1009-15 (D.C. Cir. 1980). At the same time, the government urged that I was bound by the Second Circuit's decision in United States v. Charmer Industries, Inc., 711 F.2d 1164 (2d Cir. 1983), wherein the Court stated that: "[a]s a court document, the presentence report is not within the purview of either the Freedom of Information Act . . . or the Privacy Act . . . notwithstanding its use or retention by agencies such as the Bureau of Prisons and the Parole Commission." Id. at 1167 n.6. Although plaintiff attempted to distinguish Charmer on its facts, neither of the parties alerted me to the fact that the Charmer position had been cast into serious doubt by the Solicitor General's recent admission (in a brief to the United States Supreme Court opposing an appellant's petition for a writ of certiorari) that presentence reports are agency records within the meaning of the the FOIA. The immediate result of that concession was that two cases consistent with Charmer were vacated by the Supreme Court and remanded for further consideration in light of the Solicitor General's new construction of the relevant statutes. See Lindsey v. Bureau of Prisons, 736 F.2d 1462 (11th Cir.), vacated and remanded, 469 U.S. 1082, 105 S. Ct. 584, 83 L. Ed. 2d 695 (1984); Crooker v. United States Parole Comm'n, 730 F.2d 1 (1st Cir.), vacated and remanded, 469 U.S. 926, 105 S. Ct. 317, 83 L. Ed. 2d 255 (1984). Based on these developments, the First Circuit, on remand, reconsidered its earlier decision and found that a presentence report in the possession of the Parole Commission was not exempt from disclosure under the FOIA. See Crooker v. United States Parole Comm'n, 760 F.2d 1 (1st Cir. 1985).

Despite all of this judicial activity, this Court was left without a clear indication of how to proceed. The decision in Crooker on remand was not enlightening, since it dealt with a prisoner's right to obtain a presentence report that is in the specific possession of the Parole Commission, and is being used in reaching a decision regarding a prisoner's parole. Not only does that issue deal with facts distinct from the case at bar, but the same issue has recently been resolved by the Second Circuit on grounds basically unrelated to the FOIA or the Privacy Act. See Lynch v. United States Parole Comm'n, 768 F.2d 491, 498-99 (2d Cir. 1985) ("reasonable access" rule of 18 U.S.C. 4208(b) mandates disclosure of presentence report being used by the Commission in a parole decision).

Another element of confusion was caused by the fact that both cases remanded by the Supreme Court were FOIA cases, and it is at least conceivable that presentence reports could be available under the FOIA but not under the Privacy Act. See Shapiro v. Drug Enforcement Administration, 762 F.2d 611, 612 (7th Cir. 1985). Nevertheless, the recent developments detailed above suggest that it would be imprudent for this Court to find that presentence reports are not agency records within 5 U.S.C. § 552a(a)(4) of the Privacy Act, notwithstanding the prior directive of this Circuit in Charmer, supra. I am convinced that the Second Circuit, in light of the history of Lindsey, supra, and Crooker, supra, would, given the opportunity, readily find that presentence reports are agency records within the meaning of the Privacy Act.

Such a determination, however, leads to yet another question -- whether the government should prevail in its argument, raised in its initial submission of the Rosenberg File for in camera review, that plaintiff's presentence report is exempt from disclosure under section (j)(2) of the Privacy Act, which specifically authorizes the head of any agency involved with law enforcement activities, to promulgate rules "to exempt any system of records within the agency" from the Act's general requirements of disclosure. 5 U.S.C. § 552a(j)(2).

Under the terms of section (j)(2), the Attorney General has indeed promulgated rules exempting certain systems of BOP records from various provisions of the Privacy Act, including section (d) (which requires federal agencies to permit an individual access to any agency records that pertain to him). See 28 C.F.R ? 16.97 (1984). In particular, the Attorney General has exempted the BOP's "Inmate Central Record System (JUSTICE/BOP-005)" from the Privacy Act's disclosure rules. See 28 C.F.R. § 16.97(a)(4). The Inmate Central Record System includes, inter alia, records pertaining to "[c]omputation of sentence and supporting documentation," as well as "[i]nformation concerning present offense, prior criminal background, sentence and parole from the U.S. Attorneys, the Federal courts, and federal prosecuting agencies." 49 Fed. Reg. 23,712 (June 7, 1984).

Thus, it appears that the presentence report sought by plaintiff clearly falls within the exempted Inmate Central Record System, particularly as defined in the notice published in last year's Federal Register. Cf. Turner v. Ralston, 567 F. Supp. 606 (W.D. Mo. 1983) (plaintiff properly denied access under Privacy Act to prison classification study where BOP relied on 28 C.F.R. § 16.97). Accordingly, non-disclosure is proper so long as the exemption relied upon has been adequately justified by the BOP. See Exner v. Federal Bureau of Investigation, 612 F.2d 1202, 1204 (9th Cir. 1980); 5 U.S.C. §§ 552a(j), 553(c) (agencies are required to set forth, as part of any newly promulgated rules exempting agency records from disclosure under the Privacy Act, the reasons why a particular system of records is to be exempted). I am satisfied that the BOP has set forth adequate reasons for its decision to exempt presentence reports and other Inmate Central Records, see 28 C.F.R. § 16.97(b).
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At the same time, I find that those proferred reasons are simply inapplicable when the particular document requested is a matter of public record, especially in light of the Bureau's declaration that it will permit limited access to exempted records when such access will not jeopardize agency interests. See 28 C.F.R. § 16.97(c). That is why I ordered the government to release the BOP's copy of the transcript of the New Jersey District Court's sentencing of Rosenberg and her cohort Blunk.

Even though plaintiff has preserved its objection to my decision that the BOP need not release its copy of the presentence report,
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I perceive no reason why my ruling, even if incorrect, has prejudiced plaintiff in the context of these proceedings.
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Specifically, the opportunity that I have had to review the contents of the presentence report in camera has allowed me to honor the request of plaintiff's counsel to consider whether the report includes references to unproven allegations of criminal conduct, specifically, the charges against Susan Rosenberg that were contained in the Brinks indictment. See Transcript of November 5, 1985 Hearing at 8. Thus, the presentence report has become part of the record in this case, notwithstanding the fact that plaintiff has been denied access to its precise contents.

III. DEFENDANTS' MOTION TO DISMISS CLAIM AS MOOT

The government's motion to dismiss the complaint as moot is based upon the fundamental principle that the adjudicatory power of a federal court depends upon "the continuing existence of a live and acute controversy." Steffel v. Thompson, 415 U.S. 452, 459, 39 L. Ed. 2d 505, 94 S. Ct. 1209 (1974) (emphasis in original). The existence of such a controversy at the time the complaint is filed will, standing alone, be insufficient to satisfy the jurisdictional requirements imposed by Article III of the U.S. Constitution; it is necessary that "an actual controversy ... be extant at all stages of review." Id. at 459 n. 10 (citations omitted); accord, Mawhinney v. Henderson, 542 F.2d 1, 2 (2d Cir. 1976).

In the present case, even a cursory review of the complaint reveals that a significant portion thereof is devoted to plaintiff's allegations that her permanent designation to a short-term holding facility (specifically MCC-Chicago) would create conditions of confinement so onerous as to amount to a violation of her constitutional rights. See Complaint PP 17, 19, 20, 21, 22, 24. Common sense requires the conclusion that the BOP's decision (quite possibly motivated by the institution of this suit) to designate FCI-Lexington as the facility at which plaintiff will formally begin serving her 58-year sentence renders moot any questions concerning the adequacy of conditions at MCC-NY, MCC-Chicago, or MCC-Tucson, or the legitimacy of plaintiff's permanent confinement in any of those facilities.
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See Wahl v. McIver, 773 F.2d 1169, 1173-74 (11th Cir. 1985) (§ 1983 action concerning conditions at county jail dismissed as moot once prisoner was moved).
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I will not go so far, however, as to hold that the permanent designation of Susan Rosenberg to FCI-Lexington necessitates the dismissal of her entire complaint as moot. Plaintiff's complaint contains broad allegations that her adverse treatment at the hands of defendants, particularly as to her classification as a security-level # 4 prisoner with a "maximum" custody rating, has been in violation of her constitutional rights.
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These claims have not been rendered moot and, as they arise under federal law, are clearly within this Court's jurisdiction under 28 U.S.C. § 1331. Accordingly, this Court retains jurisdiction over plaintiff's action for preliminary and permanent injunctive relief, and for a declaratory judgment, but only insofar as they deal with defendants' classification of Rosenberg as a security level # 4 prisoner with a "maximum" custody rating.

Plaintiff's claim based upon the alleged violation of Rosenberg's Fifth and Eighth Amendment rights caused by defendants' designating her to MCC-Chicago, see Complaint P 28, is hereby dismissed as moot. Likewise, plaintiff's claim that defendants committed a gross abuse of discretion in designating Rosenberg to MCC-Chicago, is dismissed as moot. In so ruling, I do not mean to suggest that these claims, were they not moot, would have been successful. As the government has argued in these proceedings on several occasions, duly convicted prisoners have no right to choose their prison, and the discretion of prison officials to transfer inmates as they see fit is extremely broad. This is true not only as to the transfer of inmates within the federal prison system, see Persico v. Gunnell, 560 F. Supp. 1128, 1133 (S.D.N.Y. 1983) (Motley, C.J.) (federal prisoners may be incarcerated at any of the facilities at which their confinement is authorized under 18 U.S.C. § 4082), but also as to the intrastate transfer of prisoners by state prison authorities, see Montanye v. Haymes, 427 U.S. 236, 242, 49 L. Ed. 2d 466, 96 S. Ct. 2543 (1976) (inmate's due process rights are not infringed by transfer from one prison to another within the State, even in the absence of a pretransfer hearing, unless the inmate has some additional right or expectation rooted in state law); Meachum v. Fano, 427 U.S. 215, 228, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976) (the Due Process Clause in no way restricts the discretion of state prison officials to transfer prisoners "for whatever reason or for no reason at all"). See also Kivela v. United States Attorney General, 523 F. Supp. 1321, 1324-25 (S.D.N.Y. 1981) (Weinfeld, D.J.), aff'd mem., 688 F.2d 815 (2d Cir. 1982) (dismissing petition challenging prisoner's transfer from Vermont correctional facility to federal BOP facility in New York).
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The following Findings of Fact and Conclusions of Law are set forth pursuant to Fed. R. Civ. P. 52(a).

A. Findings of Fact21

1. The facts set forth in Part I of this opinion, supra, are hereby incorporated into ...

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